Lisa Monaco

This will be a bit of a contrary take on what I believe to be the reasons for President Obama’s capitulation on the dragnet, announcing support today for a plan to outsource the first query in the dragnetting process to the telecoms.

It goes back to the claims — rolled out in February — that the NSA has only been getting 20 to 30% of the call data in the US. Those reports were always silent or sketchy on several items:

The claims were always silent that they applied only to Section 215, and did not account for the vast amount of data, including US person cell data, collected under EO 12333.

The claims were sketchy about the timing of the claim, especially in light of known collection of cell data in 2010 and 2011, showing that at that point NSA had no legal restrictions on accepting such data.

The claims were silent about why, in both sworn court declarations and statements to Congress, Administration officials said the collection (sometimes modified by Section 215, often, especially in court declarations, not) was comprehensive.

Here’s what I think lies behind those claims.

We know that as recently as September 1, 2011, the NSA believed it had the legal authority to collect cell location data under Section 215, because they were doing just that. Congress apparently did not respond well to learning, belatedly, that the government was collecting location data in a secret interpretation of a secret interpretation. Nevertheless, it appears the government still believed it had that authority — though was reevaluating it — on January 31, 2012, when Ron Wyden asked James Clapper about it — invoking the “secret law” we know to be Section 215 — during his yearly grilling of Clapper in the Global Threat hearing.

Wyden: Director Clapper, as you know the Supreme Court ruled last week that it was unconstitutional for federal agents to attach a GPS tracking device to an individual’s car and monitor their movements 24/7 without a warrant. Because the Chair was being very gracious, I want to do this briefly. Can you tell me as of now what you believe this means for the intelligence community, number 1, and 2, would you be willing to commit this morning to giving me an unclassified response with respect to what you believe the law authorizes. This goes to the point that you and I have talked, Sir, about in the past, the question of secret law, I strongly feel that the laws and their interpretations must be public. And then of course the important work that all of you’re doing we very often have to keep that classified in order to protect secrets and the well-being of your capable staff. So just two parts, 1, what you think the law means as of now, and will you commit to giving me an unclassified answer on the point of what you believe the law actually authorizes.

Clapper: Sir, the judgment rendered was, as you stated, was in a law enforcement context. We are now examining, and the lawyers are, what are the potential implications for intelligence, you know, foreign or domestic. So, that reading is of great interest to us. And I’m sure we can share it with you. [looks around for confirmation] One more point I need to make, though. In all of this, we will–we have and will continue to abide by the Fourth Amendment. [my emphasis]

Unsurprisingly, as far as I know, Clapper never gave Wyden an unclassified answer.

Nevertheless, since then the government has come to believe it cannot accept cell data under Section 215. Perhaps in 2012 as part of the review Clapper said was ongoing, the government decided the Jones decision made their collection of the cell location of every cell phone in the US illegal or at least problematic. Maybe, in one of the 7 Primary orders DOJ is still withholding from 2011 to 2013, the FISC decided Jones made it illegal to accept data that included cell location. It may be that a February 24, 2013 FISC opinion — not a primary order but one that significantly reinterpreted Section 215 — did so. Certainly, by July 19, 2013, when Claire Eagan prohibited it explicitly in a primary order, it became illegal for the government to accept cell location data.

That much is clear, though: until at least 2011, DOJ believed accepting cell location under Section 215 was legal. At least by July 19, 2013, FISC made it clear that would not be legal.

That, I believe, is where the problems accepting cell phone data as part of Section 215 come from (though this doesn’t affect EO 12333 data at all, and NSA surely still gets much of what it wants via EO 12333). Theresa Shea has explicitly said in sworn declarations that the NSA only gets existing business records. As William Ockham and Mindrayge have helped me understand, unless a telecom makes it own daily record of all the calls carried on its network — which we know AT&T does in the Hemisphere program, funded by the White House Drug Czar — then the business ecords the phone company will have are its SS7 routing records. And that’s going to include cell phone records. And those include location data for cell phones.

Now, it may be that the telecoms chose not to scan out this information for the government. It may be that after the program got exposed they chose to do the bare minimum, and the cell restrictions allowed them to limit what they turned over (something similar may have happened with VOIP calls carried across their networks). It may be that Verizon and even AT&T chose to only provide that kind of data via EO 12333 program that, because they are voluntary, get paid at a much higher rate. In any case, I have very little doubt that NSA got the phone records from Verizon, just not via Section 215.

But I’m increasingly sure the conflict between Section 215’s limit to existing business record and the limits imposed on Section 215 via whatever means was the source of the “problem” that led NSA to only get 30% of phone records [via the Section 215 program, which is different than saying they only got 30% of all records from US calls].

the companies would be compelled by court order to provide technical assistance to ensure that the records can be queried and that results are transmitted to the government in a usable format and in a timely manner.

And the RuppRoge Fake Fix…

(h)(1)(A) immediately provide the Government with records, whether existing or created in the future, in the format specified by the Government

[snip]

(h)(2) The Government may provide any information, facilities, or assistance necessary to aid an electronic communications service provider in complying with a directive issued pursuant to paragraph (1).

Is that the government gets to dictate what format they get records in here, which they couldn’t do under Section 215. That means, among other things, they can dictate that the telecoms strip out any location data before it gets to NSA, meaning NSA would remain compliant with whatever secret orders have made the collection of cell location in bulk illegal.

Remember, too, that both of these programs will have an alert feature. In spite of getting an alert system to replace the one deemed illegal in 2009 approved on November 8 2012, the government has not yet gotten that alert function working for what are described as technical reasons.

The Court understands that to date NSA has not implemented, and for the duration of this authorization will not as a technical matter be in a position to implement, the automated query process authorized by prior orders of this Court for analytical purposes. Accordingly, this amendment to the Primary Order authorizes the use of this automated query process for development and testing purposes only. No query results from such testing shall be made available for analytic purposes. Use of this automated query process for analytical purposes requires further order of this Court.

It’s possible that, simply doing the alert on exclusively legally authorized data (as opposed to data mixing EO 12333 and FISC data) solves the technical problems that had stymied NSA from rolling out the alert system they have been trying to replace for 5 years. It’s possible that because NSA was getting its comprehensive coverage of US calls via different authorities, it could not comply with the FISC’s legal limits on the alert system. But we know there will be an alert function if either of these bills are passed.

The point is, here, too, outsourcing the initial query process solves a legal-technical problem the government has been struggling with for years.

But don’t be fooled. Obama’s doing this as much because it’s the easiest way to solve legal and technical problems that have long existed because the government chose to apply a law that was entirely inapt to the function they wanted to use it for.

Shockers! A more privacy protective solution also happens to provide the best technical and legal solution to the problem at hand.

Update: Forgot to add that, assuming I’m right, this will be a pressure point that Members of Congress will know about but we won’t get to talk about. That is, a significant subset of Congress will know that unless they do something drastic, like threatening legal penalties or specifically defunding any dragnetting, the Executive will continue to do this one way or another, whether it’s under a hybrid of Section 215 and EO 12333 collection, or under this new program. That is, it will be a selling point to people like Adam Schiff (who advocated taking the call records out of government hands but who has also backed these proposals) that this could bring all US intelligence collection under the oversight of the FISC (it won’t, really, especially without a very strong exclusivity provision that prohibits using other means, which the Administration will refuse because it would make a lot of what it does overseas illegal). This is the same tension that won the support of moderates during the FISA Amendments Act, a hope to resolve real separation of powers concerns with an imperfect law. So long as the Leahy-Sensenbrenner supporters remain firm on their demands for more reforms, we may be able to make this a less imperfect law. But understand that some members of Congress will view passing this law as a way to impose oversight over a practice (the EO 12333 collection of US phone records) that has none.

This week Congressmen Mike Rogers (R-MI) and Dutch Ruppersberger (D-MD) released the “End Bulk Collection Act of 2014”, which would end bulk collection of data related to electronic communications. The White House also announced that it is proposing an approach to end bulk collection. We applaud these proposals to end Section 215 bulk collection, but feel that it is critical to get the details of this important effort right. So at this early point in the process, we propose this basic principle that should guide the effort: the reformed collection process should not require companies to store data for longer than, or in formats that differ from, what they already do for business purposes. If Verizon receives a valid request for business records, we will respond in a timely way, but companies should not be required to create, analyze or retain records for reasons other than business purposes. [my emphasis]

It’s telling, first of all, because Verizon still doesn’t want to have to fuss with anything but their business records. That says it has been unwilling to do so, in the past, which, in my schema, totally explains why the government couldn’t get Verizon cell records using Section 215. (I have wondered whether this was a newfound complaint, since they got exposed whereas AT&T did not; and even in spite of Randal Milch’s denial, I still do wonder whether the Verizon-Vodaphone split hasn’t freed them of some data compliance obligations.)

Just as importantly, Verizon doesn’t want to analyze any of this data. As I have pointed out, someone is going to have to do high volume number analysis, because otherwise the number of US person records turned over will be inappropriately large but small enough it will be a significant privacy violation to do it at that point (for some things, it requires access to the raw data).

I’m unclear whether the RuppRuge Fake Fix plan of offering assistance (that is, having NSA onsite) fixes this, because NSA could do this analysis at Verizon.

Too bad for Obama he has decided the great new way to aggressively prosecute leaks without the bad PR of doing it through the Courts is to have James Clapper’s Inspector General investigate them. Because I’m betting the IC IG will be unenthusiastic about hunting down this admitted leaker.

Some U.S. intelligence officials said they were being blamed by the White House for conducting surveillance that was authorized under the law and utilized at the White House.

“People are furious,” said a senior intelligence official who would not be identified discussing classified information. “This is officially the White House cutting off the intelligence community.”

But I’m a bit more interested in this barb, putting Homeland Security Advisor Lisa Monaco solidly in the line of communication receiving intelligence from wiretaps on foreign leaders.

Any decision to spy on friendly foreign leaders is made with input from the State Department, which considers the political risk, the official said. Any useful intelligence is then given to the president’s counter-terrorism advisor, Lisa Monaco, among other White House officials.

As I have twicenoted, Monaco brings dramatically different experience to the position than her predecessor, John Brennan. Rather than being implicated in the illegal program that was the root of many of the problems as the program moved under FISA Court review, she had had to try to clean them up while Assistant Attorney General for National Security, including at least the upstream violations. She also participated in the decision to shut down the Internet dragnet collection program.

After prior bitching about her silence during this scandal, she penned an op-ed last week laying out the evolving White House position.

Today’s world is highly interconnected, and the flow of large amounts of data is unprecedented. That’s why the president has directed us to review our surveillance capabilities, including with respect to our foreign partners. We want to ensure we are collecting information because we need it and not just because we can.

[snip]

Going forward, we will continue to gather the information we need to keep ourselves and our allies safe, while giving even greater focus to ensuring that we are balancing our security needs with the privacy concerns all people share.

The implication, of course, is that the same person voicing this “because we need it and not just because we can” has been implicated by receiving intelligence with Merkel’s and other leaders names on it, and may be responsible for not alerting the President to it. The accuracy of the claim, of course, depends on whether the White House really shut down the collection on Merkel earlier this summer or only in the last week or so; remember tasking priorities are reassessed biannually. Moreover, it’s not like wiretaps on allied leaders would be the primary focus of someone whose job centers on counterterrorism.

The thing is, this attack can backfire, as having received this information puts Monaco in an appropriate position to know whether we were collecting it because we could, not because we need to.

Monaco has, in the past, been part of a team that deemed a program not valuable enough to sustain. Which means she has a little experience for the pushback the IC may be throwing at her in coming days.

In his speech at Cato last week Ron Wyden made it clear that when he asked Keith Alexander and James Clapper in advance of the reauthorization of the FISA Amendments Act for the number of Americans’ communications that had been collected under Section 702, he meant to elicit the estimates John Bates made in his October 3, 2011 opinion.

I spent much of 2012 asking the NSA and the DNI [Director of National Intelligence] whether anyone had done an estimate of how many American communications had been collected under section 702. The ODNI and the NSA insisted that such an estimate was impossible, but what they failed to tell the public was that the Fisa court had already done one.

Bates had the NSA conduct a manual review of a statistical subsection of 50,440 transactions collected via upstream collection between January and June 2011. (Note, it appears Bates may have had to raise dire warnings with “top DOJ officials” on July 8, 2011 before he got such a review.) He then annualized the results and estimated that the NSA was collecting up to 56,000 communications of Americans each year, made up of 46,000 communications consisting entirely of an American’s communication (Single Communication Transactions), and 10,000 in which their communication got included in a Multiple Communication Transaction swept up in the search.

Given what we’ve learned about the 2011 confrontation, Wyden’s serial requests for this information take on added importance for two reasons.

Administration never disclosed its domestic collection to the most Members of Congress

This post simply breaks out the dates in the October 3, 2011 John Bates opinion, adding the claims the government made at the time. It provides a somewhat better idea of the circumstances surrounding the manual review of upstream collection NSA did.

In his commentary on the piece, Wittes compares Bush’s defense of torture (which Wittes calls coercive interrogation) and warrantless wiretapping (I assume he means the illegal warrantless wiretapping, as distinct from the warrantless wiretapping permitted under the existing legally sanctioned program) with Obama’s relative silence on NSA’s programs.

Another comparison would be to the way President Bush handled the firestorms over NSA’s warrantless wiretapping program and the CIA’s coercive interrogation program. Whatever one thinks of the programs in question, in my view the comparison does not flatter Obama.

Say what you will about Bush and the CIA’s interrogation program; there’s no question that he owned it. Nobody in the public ever thought that the program belonged to then-CIA Director George Tenet—though Tenet certainly was an enthusiastic executor. It was Bush’s program, and the reason it came off this way was that Bush publicly, repeatedly, and personally defended it. He made speeches about it. He wrote about it in his book. He never ran away from it. Nor, notably, did his attorney general. Similarly, Bush never ran away from warrantless wiretapping program. We associate him so personally with these programs, because he stoutly stood by them.

Obama has a lot on his plate right now. But he and his White House should not be leaving defense of intelligence programs he believes in to the intelligence community. Nor should Eric Holder, whose department convinced the FISA Court of the legal views currently at issue and oversees day-to-day FISA collection activity at NSA.

The intelligence community does not task itself. And when the political leadership tasks it to do something that then engulfs it in controversy, it should be a matter of honor not to let it dangle in the breeze.

As a threshold matter, who in their right mind would ask Eric Holder to defend a program? For better or worse, he has no more credibility right now than James Clapper or Keith Alexander, particularly among conservatives who believe he’s responsible for Fast and Furious. That may make him ineffective as an AG, but that is the AG Obama has chosen to retain.

Furthermore, which Attorney General does Ben have in mind that also defended these programs (or does he mean just torture?). Not only did John Ashcroft refuse to reauthorize parts of the illegal wiretap program, but Alberto Gonzales lied about it to get confirmed as Attorney General. Or does he mean Michael Mukasey, who by all appearances sold his soul at a meeting with David Addington, promising he wouldn’t oppose torture, in order to become Attorney General in the first place?

But I’m more interested, generally, in what I consider an inapt comparison.

One can argue that the President should aggressively defend whatever intelligence activities take place under his watch. But there is a big difference between the illegal wiretap and torture programs — which were authorized by a Presidential Directive and Finding, respectively — and the surveillance programs being exposed as a result of the Snowden leaks — which were authorized by law.

In the former case, the intelligence agencies are all the more reliant on the President’s vocal defense, because without it they are entirely illegal. And for better and worse, the President should (but didn’t, at least not in the case of torture) pay close attention to the execution of those programs because he’s on the hook for them himself. That makes it much harder for the President to criticize any violations of the programs he authorized (like torture contractors James Mitchell and Bruce Jessen exceeding the terms of the program).

To the extent that the Intelligence Committees operate within the terms of the law, the same could be said of congressionally sanctioned programs.

That’s not what we’re talking about here. We’re talking about phone dragnet, Internet dragnet, and upstream collection, all of which violated the laws and/or Court ordered procedures authorizing them. When the government moved the phone dragnet under Section 215, it retained access for other agencies, performed contact chaining on unapproved selectors, and allowed access to the database from other NSA interfaces, old features of the illegal program that should have been turned off in 2006. We don’t know what the Internet dragnet violations were, but they’re likely also continuations of the illegal program. And NSA used FISA to intentionally target (according to John Bates) US person communications, in violation of the law and the Fourth Amendment, but also a practice that continued from the illegal program.

And the phone dragnet and (presuming they were discovered as part of the end-to-end review, though if they weren’t it’d be even more damning) Internet dragnet violations were admitted, after having persisted for 3 years, just as Obama entered the White House. The phone dragnet violations, at least, did not operate unchecked under the Obama Administration.

Further, as I noted yesterday, the woman now being criticized for her silence, Lisa Monaco, is one of the handful of people who had to ride herd on NSA as DOJ’s National Security Division brought NSA practices into compliance with the actual letter of the law.

I’d like to learn more about the tensions between Agencies as the Administration tried to bring the NSA programs into line with the letter of the law and FISC orders. Perhaps NSA worked proactively to reveal and fix everything (though the record seems to suggest the opposite). Perhaps it didn’t, and David Kris and Lisa Monaco had to push to force them to comply. But under Keith Alexander, the NSA failed to stay within the letter of the law (which ought to be reason enough to fire him). That makes the problems now being revealed substantively different from the torture and illegal wiretap programs, where the Executive only had to comply with what the President personally bought off on.

It may well be that Obama has approved all of what we’re seeing (he certainly approved an expanded StuxNet so should be held responsible for much of the hacking we’re doing; note that our offensive attacks actually are parallel to the covert programs raised by Wittes), though he couldn’t have approved the phone dragnet violations. It may well be that his Administration instead reined them in as soon as they discovered them, with whatever cooperation or resistance from NSA. We simply don’t know.

But an Agency violating the letter of the law and court orders affirmatively authorizing their actions is qualitatively different than an Agency violating the law based on direct orders from the President.

“I think actually this is the first signal that John Brennan is gone,” said Baker, the former NSA general counsel. “I think that if Brennan had still been there he would have immediately appreciated the importance, and communicated that to the president, of defending the program.”

John Brennan, of course, played a key role in rationalizing Dick Cheney’s illegal wiretap program, and therefore not only has a stake in protecting NSA, but also in insisting that the current program — which is just a rehashed version of the illegal program — is critical for detecting terrorists.

By comparison, Lisa Monaco, whom Baker implicitly criticizes (and the article explicitly notes) for her silence in the face of NSA’s problems, headed DOJ’s National Security Division from 2010 2011 until this year, and so likely had to deal with the aftermath of the phone dragnet problems, the full brunt of the Internet dragnet problems (which purportedly got shut down under her tenure), and the upstream collection problems — all three “features” of the illegal program that never got shut down when it moved under FISA Court supervision, and got called “bugs” when DOJ (Monaco!) had to reveal them.

And while the piece provides interesting new details about White House’s chilly relationship with a man they’ve nevertheless given vastly increasing amounts of power to,

The weak backing from top administration officials has aggravated the relationship between Alexander and the White House, where he has never been warmly embraced.

[snip]

Alexander has never been especially close to Obama or White House officials. Some thought he had tried to amass too much surveillance authority without appreciating the legal constraints on his agency, according to a former administration official. “I don’t understand why the White House didn’t throw Alexander under the bus,” the official added.

It actually doesn’t consider whether the Administration might be pursuing a conscious strategy of weakening Alexander’s considerable power (I have no reason to believe they are, but I can imagine why they might want to weaken someone who has only expanded his power since 2005 and got caught in serial fuck-ups as well).

It also doesn’t consider the possibility that one reason NSA employees are dispirited is because they’re learning about programs that violate the self-image they’ve got of their Agency.

Former intelligence officials who remain in regular contact with those still in government say that morale at the NSA is low, both because of the reaction to leaks by former contractor Edward Snowden, which put the normally secretive agency under intense scrutiny, and because of budget cutbacks and the continuing government shutdown, which has left some employees furloughed without pay.

Ah well. The NSA spokesperson is issuing slogans, so all is well in the national security world.

An NSA spokesperson downplayed any rift between the agency and the administration. “National security is a team sport. For us, collaboration is built into the very fabric of who we are,” said Vanee Vines. “There is no truth to rumors of dissension between NSA and the administration regarding the Agency’s mission to help defend the nation and save lives. Together, we all prevail.”

These are important questions. But they distract from another important question.

What kind of intelligence do they really expect to get from al-Libi?

The explanation for his capture has focused on his alleged role in the 1998 Embassy Bombings. While there are no statutes of limitation for murder, that’s nevertheless an event that took place over 15 years ago. Even some of the analysts we often rely on — not to mention his family — suggest he hasn’t had an active role in al Qaeda for over a decade, or at least since he returned home to Libya 2 years ago. Lisa Monaco offered weak claims about the importance of al-Libi.

During an appearance on PBS Newshour, Deputy National Security Adviser Lisa Monaco repeatedly referred to Abu Anas Al-Libi as a “member” of Al Qaeda. However, she stopped short of calling the Libyan-born Al-Libi a “senior operational leader”—a phrase which seemed to have special significance when the Justice Department evaluated the legality of lethal force against U.S. citizens and is also believed to apply to targeting of foreign nationals outside combat zones.

Newshour reporter Jeffrey Brown asked Monaco about whether Al-Libi posed an “imminent” threat to Americans, but Monaco wouldn’t say that and also seemed to avoid declaring that he was an Al-Qaeda operative or even a leader of the group.

“Al-Libi did pose a threat to the United States as a senior al-Qaida member and somebody who is also charged in an indictment for his role as part of the Al Qaeda worldwide conspiracy,” Monaco declared.

This is, at the least, a significant difference from Ahmed Ghailani (who was seized with an active cell in Pakistan and interrogated for years about that active cell before being tried for his role in the Embassy Bombings) and Ahmed Warsame (who was seized for his active role in working with AQAP and al-Shabaab), though it perhaps resembles Suleiman Abu Ghaith.

I’m not saying al-Libi had no active role in terrorism. The timing — the raid took place at the same time as the strike on Abdulkadir Mohamed Abdulkadir, who allegedly helped plan attacks in Kenya — might suggest al-Libi played some role in the Westgate Mall attack and other operations in Africa.

Perhaps the most complete explanation for why al-Libi is a current threat is this description.

An unclassified report published in August 2012 highlighted al Qaeda’s strategy for building a fully operational network in Libya. The report (“Al Qaeda in Libya: A Profile”) was prepared by the federal research division of the Library of Congress (LOC) under an agreement with the Defense Department’s Combating Terrorism Technical Support Office (CTTSO). [See LWJ report, Al Qaeda’s plan for Libya highlighted in congressional report.]

Abu Anas al Libi has played a key role in al Qaeda’s plan for Libya, according to the report’s authors. He was described as the “builder of al Qaeda’s network in Libya.”

Al Qaeda’s senior leadership (AQSL) has “issued strategic guidance to followers in Libya and elsewhere to take advantage of the Libyan rebellion,” the report reads. AQSL ordered its followers to “gather weapons,” “establish training camps,” “build a network in secret,” “establish an Islamic state,” and “institute sharia” law in Libya.

Abu Anas al Libi was identified as the key liaison between AQSL and others inside Libya who were working for al Qaeda. “Reporting indicates that intense communications from AQSL are conducted through Abu Anas al Libi, who is believed to be an intermediary between [Ayman al] Zawahiri and jihadists in Libya,” the report notes.

Al Libi and his fellow al Qaeda operatives “have been conducting consultations with AQSL in Afghanistan and Pakistan about announcing the presence of a branch of the organization that will be led by returnees from Iraq, Yemen, and Afghanistan, and by leading figures from the former LIFG.” The LIFG refers to the Libyan Islamic Fighting Group, an al Qaeda-linked jihadist group formed in Libya in the 1990s.

The suggestion that al-Libi might be the liaison between Ayman al-Zawahiri and extremists in Libya (extremists we helped to overthrow Qaddafi) is more interesting, particularly given Libya’s public objections to al-Libi’s rendition. Perhaps the ultimate plan is to hold al-Libi responsible for Benghazi (though interrogating him in a floating prison might endanger any charges if he was involved, which would be a big problem given the need for some finality on Benghazi). But it might raise interesting questions about whether the extremists we helped in Libya really constitute al Qaeda, or instead constitute a legitimate force within that country.

As of now, however, the US public story is that we captured this guy who has been living in the open for two years for a crime he committed 15 years ago. And that instead of whisking him immediately to NY to stand trial for that crime, we are instead pissing off the Libyan government and nudging up against a slew of domestic and international laws by conducting a floating interrogation from which we might learn only decades old facts. If that’s the story (and again, I suspect the government at least claims there is more), it makes all the legal and ethical issues surrounding his detention all the more problematic.

One of the most enlightening aspects of yesterday’s Senate Intelligence Hearing on FISA came when Dianne Feinstein tried to rebut witness Tim Edgar’s categorization of the 2011 violations described in John Bates October 8, 2011 opinion. In her rebuttal, she proved she either doesn’t know, doesn’t understand, or chooses to misrepresent the opinion, which found that NSA had violated the law and Fourth Amendment in its Section 702 program.

Edgar was arguing (see page 5-6) that if the FISA Court opinions were publicly released, we’d know about ridiculous semantic definitions — like “relevant” — as those definitions were invoked, not years after the fact, which would lead to greater trust in the FISC.

As his second example, he cited NSA’s collection of US person communications on upstream collection. (After 2:20)

EDGAR: [T]he NSA’s interpretation of the requirement in Section 702, for content surveillance targeting foreign persons, that those procedures must target foreign persons is also surprising. The FISA court’s recently released opinions show that communications that target foreign persons include not only communications that are to or from that person, but also those that are merely about that person in a particular narrow sense, that the selection — the selector for that person appears in the communication.

Even communications which are not to or from, or about, the foreign target at all have been acquired as the result of the manner in which some NSA collection was conducted.

DiFi interrupted him (whoa whoa whoa stop!) — and (having read his statement in advance) started reading a written rebuttal to provide her version of the 2011 violations.

FEINSTEIN: Whoa, whoa, whoa, stop. Exactly what program are you talking about?

EDGAR: In the recently released FISA court opinion about upstream collection in the compliance incidents in 2011, it was documented how information from multiple communications — what they called “multiple communications transactions” — was obtained not by mistake, but because of the way the system was designed. That included any selector that was a foreign target in the entire multi- communications transaction.

And so that created a lot of controversy in the FISA court, and required the FISA court to work with the Justice Department and the intelligence community to narrow the minimization guidelines.

FEINSTEIN: OK. Because this is — this is important, may I interrupt this just — respond? [reading from prepared statement] In mid 2011, NSA notified the DOJ, the DNI, and the FISA court, and House and Senate Intelligence Committees, of a series of compliance incidents impacting a subset of NSA collection under Section 702 of FISA, known as upstream collection.

This comprises about 10 percent of all collection that takes place under 702, and occurs when NSA obtains Internet communications, such as e-mails, from certain U.S. companies that operate the Internet background;[sic] i.e., the companies that own and operate the domestic telecommunication lines over which Internet traffic flows.

In essence, the issue that arose in 2011 was that NSA, while trying to acquire e-mails to, from, or about an overseas target, realized it, and was inadvertent — that it was inadvertently acquiring other e-mails, including some e-mails sent between persons inside the United States that happened to be bundled with the e-mail messages NSA was trying to collect.

This bundling is done by Internet companies in order to make it easier to send information quickly over the telecom lines that make up the Internet. Unfortunately, NSA’s technical systems could not easily separate the individual messages within these bundles. And the result was that NSA collected some e-mail messages it did not intend to acquire.

OK. We held a lengthy hearing on the court’s ruling on October 20, 2011, at which General Alexander and Lisa Monaco — then the assistant attorney general for national security — described the court’s ruling and what they were doing to address it.

Here’s my point: It was a mistake. Action was taken immediately to correct it. It came to us. We took action. [bold mine, underline emphasis DiFi applied in delivery]

DiFi’s prepared statement misstates the facts as presented in Bates’ opinion in several ways:

The issue had existed since before July 2008

The collection was — according to the court ruling — not inadvertent

NSA only corrected the problem under threat of criminal referral, after months of delay

First, the issue did not arise in 2011.

As Bates made clear, “NSA has been collecting MCT’s since before the Court’s approval of the first Section 702 certification in 2008.” Continue reading →

NBC published a fascinating article yesterday that provided new and interesting details on the events surrounding the escalation of drone strikes in Yemen that took place in response to the “intercepted conference call” that wasn’t a conference call. Matthew Cole, Richard Esposito and Jim Miklaszewski report on the personnel and policy changes that were taking place in the Obama administration as these events unfolded and how these changes had led to a decrease in drone strikes:

Obama announced that he had chosen Lisa Monaco to replace Brennan as his top counterterror official on January 25, and she officially assumed the role of Homeland Security Advisor on March 8. The U.S. launched four strikes on Yemen between January 19 and January 23, just before Obama’s announcement about Monaco, but didn’t launch another until April 17.

“With Brennan going over to CIA and Monaco replacing him, it took time,” said a senior counterterrorism official. “This was a while coming. JSOC (the Pentagon’s Joint Special Operations Command) was pushing for more strikes and more operations but the White House slowed everything down.”

Those three strikes in mid-April were followed by another lull in strikes until mid-May, when there were two strikes just before Obama’s drone policy speech:

In tandem with the drone speech, the President issued new internal guidance to officials that tightened controls on what targets could be hit and who could make the decision to launch a drone.

What followed, sources said, was more frustration from Defense Department officials, and a third, seven-week-long interruption in drone strikes that led to a backlog of identified militant targets in Yemen.

But the “targeting” done by JSOC in Yemen isn’t of the same quality as the information prepared for targeting by the CIA for strikes in Pakistan, according to the NBC report:

In May, around the time of Obama’s speech, senior military officials prepared “targeting packages” for Monaco, with a roster of suspected militants in Yemen that they wanted to eliminate. The “targeting packages” contain background information on the identified targets. The CIA’s packages for Pakistan are often very detailed, while the Defense Department’s research on Yemeni targets was sometimes less detailed.

In fact, the JSOC apparently even admitted that some of these recent targeting packages pertained to lower level targets, but in an apparent use of pre-cogs, they claimed these were going to be important al Qaeda figures in the future and the administration had to deal with the question of “pain now, or pain later” in their recommendation to take out these lower level operatives.

Keep in mind that these meetings to discuss drone targets, also know as “Terror Tuesday” meetings, are populated by high level security personnel from many agencies. Both JSOC, as the target developer for drone strikes in Yemen, and NSA, as the purveyor of information gleaned from surveillance, would of course be present.

As @pmcall noted to me on Twitter, the “intercept” then magically appeared and opened the floodgates for strikes:

@JimWhiteGNV Let’s see military frustrated no drone strikes approved & all of a sudden a magic message intercepted. Full speed ahead again

“I don’t look at this as being a whistleblower. I think it’s an act of treason,” the chairwoman of the Senate Intelligence Committee told reporters.

The California lawmaker went on to say that Snowden had violated his oath to defend the Constitution.

“He violated the oath, he violated the law. It’s treason.”

Perhaps DiFi can be excused for her harsh judgment. After all, in addition to exposing the sheer range of surveillance our government is doing, Snowden made it very clear that DiFi allowed Director of National Intelligence James Clapper to lie to her committee.

And continues to allow Clapper’s lie to go unreported, much less punished.

But I thought it worthwhile to point out the many people who have committed to make the FISA Court Opinions describing, among other things, how the government’s abuse of Section 215 violated the Constitution.

In 2010, DOJ promised to try to declassify important rulings of law.

In 2010, as part of the same effort, Clapper’s office promised to try to declassify important rulings of law.

In 2011, prior to be confirmed as Assistant Attorney General, now White House Homeland Security Advisor Lisa Monaco promised, “I will work to ensure that the Department continues to work with the ODNI to make this important body of law as accessible as possible.”

All these people claimed they wanted to make FISC’s opinion, among other things, on the secret use of Section 215 public.

What Snowden released on Section 215 — just a single 215 order to Verizon, without details on how this information is used — is far, far less than what DOJ and ODNI and Lisa Monaco pledged to try to release. Given that the collection is targeted on every single American indiscriminately, it won’t tell the bad guys anything (except that they’ve been sucked into the same dragnet the rest of us have). And while it shows that FBI submits the order but the data gets delivered to NSA (which has some interesting implications), that’s a source and method to game the law, not the source or method used to identify terrorists.

So if Snowden committed treason, he did so doing far less than top members of our National Security establishment promised to do.

Wait.

There’s one more member of this gang of — according to DiFi — traitors committed to tell Americans how their government spies on them. There’s the Senator who said this on December 27, 2012.

I have offered to Senator Merkley to write a letter requesting declassification of more FISA Court opinions. If the letter does not work, we will do another intelligence authorization bill next year, and we can discuss what can be added to that bill on this issue.

Oh, wait! That was Senator Dianne Feinstein, arguing that they didn’t have time to pass an actual amendment, attached to the actual FISA Amendments Act renewal, forcing the government to turn over this secret law.

But she promised to write a letter!

And even, DiFi claimed (though similar promises to John Cornyn to obtain the OLC memo authorizing Anwar al-Awlaki’s killing went undelivered), to include a requirement in this year’s intelligence authorization requiring the government to turn over far more information on the government’s use of Section 215 than Snowden did.

I get that DiFi doesn’t agree with his method — that he leaked this rather than (!) write a letter. I get that Snowden has exposed DiFi for allowing Clapper lie to her committee, in part to hide precisely this information.

But in debates in the Senate, at least, DiFi has claimed to support releasing just this kind of information.